123 U.S. 56 - Morey v. Lockhart

123 US 56 Morey v. Lockhart

This is an appeal from an order of the circuit court remanding a suit which was begun and had been removed from a state court after the act of March 3, 1887, c. 373, (24 St. 552,) went into effect. At the hearing of the motion, the judges holding the circuit court differed in opinion, and the order to remand was made under section 650, Rev. St., in accordance with the opinion of the presiding judge. The question as to which the difference of opinion arose was duly certified and recorded, and this appeal was taken from the order which was entered. A motion is now made to dismiss, because an appeal does not lie in such a case.

2

Before the act of March 3, 1875, there could be no appeal from an order of the circuit court remanding a suit which had been removed, because such an order was not a final judgment or decree in the sense which authorizes an appeal or writ of error. Railroad Co. v. Wiswall, 23 Wall. 507. That act, however, provided in express terms that 'the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court on writ of error or appeal, as the case may be,' (18 St. 470, c. 137, last paragraph of section 5;) and under this authority numerous cases have been brought to this court by appeal or writ of error for the review of such orders. But, by section 6 of the act of 1887, c. 373, the last paragraph of section 5 of that of 1875, c. 137, was expressly repealed; and in the last paragraph of section 2 of the act of 1887 it was enacted that 'whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such case shall be allowed.' It is difficult to see what more could be done to make the action of the circuit court final, for all the purposes of the removal, and not the subject of review in this court. First, it is declared that there shall be no appeal or writ of error in such a case; and then, to make the matter doubly sure, the only statute which ever gave the right of such an appeal or writ of error is repealed.

3

It is contended, however, that the prohibitions against appeals and writs of error in the act of 1887 apply only to removals on account of prejudice or local influence; but that cannot be so. The section of the statute in which the provision occurs has relation to removals generally,—those for prejudice or local influence, as well as those for other causes,—and the prohibition has no words of limitation. It is, in effect, that no appeal or writ of error shall be allowed from an order to remand in 'any cause' removed 'from any state court into any circuit court of the United States.' The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of congress.

4

It is also contended that the appeal lies under section 693, Rev. St., on account of the certificate, in the record of the judges holding the court, that their opinions were opposed upon the question of remanding. That section is as follows: 'Any final judgment or decree in any civil suit or proceeding before a circuit court, * * * wherein the said judges certify, as provided by law, that their opinions were opposed, * * * may be reviewed, and affirmed, reversed, or modified, by the supreme court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bill and supersedeas.' But here there has been no judgment in the suit, and therefore this section does not apply. That was the ground on which an appeal was denied in Railroad Co. v. Wiswall, supra, where it was said: 'The order of the circuit court remanding the cause to the state court is not a 'final judgment' in the action, but a refusal to hear and decide.' No case can be brought up under section 693 until there has been a final judgment or decree in the suit.

5

It follows that we have no jurisdiction of this appeal, and the motion to dismiss is consequently granted.